People v. Perez ( 2017 )

Filed 12/18/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C078452
Plaintiff and Respondent, (Super. Ct. No. 13F02646)
v.
TINO ALEXANDER PEREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Raoul M.
Thorbourne, Judge. Reversed in part and affirmed in part.
Timothy E. Warriner, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Kathleen Kenealy, Acting Attorney General,
Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant
Attorney General, Daniel B. Bernstein and Paul A. Bernardino, Deputy Attorneys
General, for Plaintiff and Respondent.
At trial, this case was about the five eyewitness identifications of the shooter at a
party for the California State University, Sacramento golf team. On appeal, the major
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issues involve defendant Tino Alexander Perez’s gang affiliation and whether there is
sufficient evidence to support the jury finding that he specifically intended to benefit the
Norteño street gang. The reason for the chasm between the trial and the appeal is the
unusual fact pattern for a gang case—while the shooter was a validated and heavily
tattooed gang member, there is no evidence the party was in gang territory, there were no
rival gangs present or involved, there were no gang epithets or gang attire, and there is no
evidence the shooting was in retaliation or for revenge. On appeal, defendant challenges
the imposition of the gang enhancement on a number of grounds. He also objects to the
admission of text messages exchanged between one of the victims and defendant’s
girlfriend, the prosecutor’s closing argument, and the finding the four attempted murders
were willful, deliberate, and premeditated. We find there is insufficient evidence to
support the gang enhancement and the life terms for willful, deliberate, and premeditated
attempted murder are unauthorized. We therefore strike the gang enhancement and the
four life terms and remand for resentencing on counts one through four, but in all other
respects, we affirm the judgment.
FACTS
Evidence Supporting the Substantive Crimes
Because defendant does not challenge the eyewitness identifications on appeal, we
need not describe each witness’s account of what transpired on the night of May 10,
2013. Suffice it to say, the evidence that defendant shot four college students at the party
is overwhelming and the jury convicted him of four counts of willful, deliberate, and
premeditated attempted murder and assault with a firearm as well as enhancements for
the personal use of a firearm and the infliction of great bodily injury. The evidence
consists of five eyewitnesses who positively identified defendant as the shooter, 1
1 An expert in experimental psychology specializing in human perception and memory
explained to the jury many of the pitfalls in eyewitness identifications and lineup
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incriminatory jail house calls, and a gun and ammunition that match photographs of a gun
and ammunition on defendant’s cell phone. The evidence that the shooting was related to
defendant’s gang affiliation, as described post, is much, much thinner.
Four close friends, Dwayne Hines, Kevin Booze, Jacarri Brown, and Jahi Vaughn
arrived together at the party hosted by the California State University, Sacramento (Sac
State) golf team. Their friend, Brandon Garcia, arrived sometime later. Hines attended
Sacramento City College and the others were students at Sac State. Vaughn did not
testify.
The others testified they saw defendant at the party. He stood out with a dark-
colored hat, hair shaved on the sides but with a long ponytail, and lots of tattoos,
including an owl figure and the number “90” around his neck, a diamond on his forearm,
an image of the State of California on his face, and skeletons on his fingers. Booze
attempted to socialize with him and defendant told him, “I’m E.”
The party wound down around midnight and many of the partygoers mingled on
the court in front of the house. Hines, Booze, and Vaughn began walking to their car
when they heard shots and returned to find their friends. Booze and Brown intervened in
a heated argument between a Hispanic woman and an African-American man, and the
man walked away. But defendant approached and appeared very agitated and angry. The
woman reassured him that Booze and Brown had been helping her. She stated, “It’s
okay, baby. They’re cool. Like, they helped me out.” But defendant pulled out a gun
from his waistband and began shooting.
Vaughn, the first to be shot, was shot in the leg. Defendant shot Hines in the thigh
before Hines jumped behind a parked truck for cover. As Booze tried to run away,
defendant shot him below the buttocks and in his calf. Brown and Garcia hid behind a
procedures diminishing the reliability of identifications, despite multiple witnesses and
their abiding confidence in the accuracy of their memories.
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car, but defendant pursued them shooting over the top of the car in their direction. Brown
felt a bullet whiz by his shoulder. As he made a run for the bushes, defendant shot him in
the right leg.
Another Sac State student who had attended the party saw defendant shooting and
tackled him. Garcia jumped in as well and disarmed him. Defendant broke free and ran
down the street and into a car with a number of Hispanic females.
At the crime scene, police officers collected a black Holt pistol grip, a bullet, a
blood-stained wristwatch, and nine casings. The bullet that was removed from Brown’s
leg and the bullet recovered from the scene were both .22-caliber Winchester
ammunition. All nine casings were also .22-caliber Winchester ammunition and they
were all fired from the same revolver.
Defendant’s cell phone stored many incriminating photographs. There were
photos of defendant flashing gang signs. There were photos of a box of .22-caliber
Winchester ammunition. And there was a photo of defendant’s wallet next to a .22-
caliber long rifle revolver. The revolver had a black grip that appeared to be the same as
the black pistol grip recovered from the scene.
Defendant had a propensity for incriminating himself. His phone calls from jail
were recorded. When asked what happened, in one call defendant responded: “Yeah, I
shot four people, bro. [¶] . . . [¶] [T]hat’s what they’re charging me with . . . . I didn’t
kill nobody but them niggers got hit with bullets . . . .” In another call, he admitted being
present at the party. “You remember that party that we went to when I went with my
brother and all them and we end up fighting after the party . . . .”
Defendant’s girlfriend, Sara-Tessa Hayes, was a classmate of Jacarri Brown. In
September 2013, they exchanged text messages about the shooting. Hayes sent the
following message: “Well, the man that you picked out of the lineup is my son’s dad.
You sent him to jail two weeks before our baby was born. You took everything away
from us. My son was born underdeveloped with a lot of medical problems, so my
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boyfriend can’t be there for a sick baby, and I can’t even go back to work because it’s
just me to take care of my son’s medical needs. They want to give Tino -- that means my
son grows up without his dad. So I just thought you should know what you did to me and
my family, and had it been the other way around, Tino wouldn’t have gone out like no
snitch. What you did was wrong. Good night.”
Brown offered to contribute financially for the care of the baby. In a later text
message, Hayes wrote: “Instead of showing concern, he changed the subject and asked
me to lie and tell you that you must have recognized him from when he would come to
Sac State to see me and to make sure you don’t testify because they are getting ready for
trial.” She apologized for everything she had said previously and stated: “[Y]ou didn’t
ruin my family. He ruined us himself. I was just too shortsighted and lonely to realize it.
I’m just not making excuses for him anymore.” She concluded, “He did what he did and
it was wrong, just like you said.”
Evidence Supporting the Gang Enhancement
The attorneys entered into the following stipulation: “Norteños are a criminal
street gang. It is an ongoing organization, association, or group of three or more persons,
whether formal or informal that has a common name or common identifying sign or
symbol. The chief primary activities of the Norteños are murder, attempted murder,
robbery, assault, assault with a firearm, and kidnapping. The members of the Norteños,
whether acting alone or together, engage in or have engaged in a pattern of criminal gang
activity. The pattern of criminal activity has occurred after September 26, 1988. The
defense stipulates that this agreement satisfies the elements located in the jury
instructions concerning what is needed to prove that the Norteños are a criminal street
gang. The defense disputes whether the defendant is a member of the Norteños.”
Detective John Sample opined that defendant was a Varrio Garden Land Norteño
(VGLN) based on (1) his interviews of defendant’s brother; (2) his review of eight police
reports involving defendant, four of those reports documenting defendant in the company
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of Norteños; (3) his search of defendant’s cell phone and monitoring of his Facebook
account; and (4) his examination of photographs of defendant’s tattoos. Detective
Sample testified that VGLN is affiliated with the Norteño Broderick Boys of West
Sacramento, where defendant’s family lives. He explained that a person must satisfy
only two of 10 criteria to be validated as a gang member. Defendant was validated in
2010 as a Norteño gang member. He was housed with “northerners” at the county jail.
Detective Sample described three tattoos connoting a gang affiliation, two on
defendant’s chest and back that were not visible at the party and one on his hands that
had been covered up. “Nutty North” appeared on his chest and the word “Nutty”
appeared on a portion of his back. The latter tattoo looked like it was incomplete. One
dot and four dots signified the number 14 and the 14th letter of the alphabet is “N.”
According to Detective Sample, the four dots had been covered and could be perceived
by gang members as disavowing the gang. Covering tattoos and forsaking gang colors
are two ways a gang member can drop out and distance himself from a gang. Defendant
was not wearing red at the party. Detective Sample acknowledged that gang membership
was an “ever-changing situation.”
Detective Sample gave the jury a basic primer on the sociology and psychology of
gangs. Central to gang membership and cohesiveness, according to the detective, is
instilling fear in the community and among rival gang members as a vehicle to achieve
respect. He opined, therefore, that defendant intended to benefit the gang with his
shooting rampage because it would instill fear in the minds of the students and thereby
enhance the gang’s reputation.
Two other officers testified to personal contacts they had with defendant. In 2008
one officer detained defendant with two validated members of the Broderick Boys.
Although defendant denied being in a gang, the officer observed tattoos on both of his
hands. In 2012 another officer observed defendant with three individuals, two who were
validated members of the Norteño gang, in a car that contained a firearm in the trunk and
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a bag of ammunition tucked in between the seats where defendant had been seated.
Defendant again denied gang membership, but the officer testified defendant remained a
validated Norteño gang member based on his tattoos, his association with Norteños, and
his wearing of gang colors.
The defense subpoenaed two female students who had attended the May 10 golf
team party to testify to the appearances of other Mexicans at the party. Neither witnessed
the shooting; one had left before it began and the other was in the house when it occurred.
Both were interviewed by the defense over a year after the shooting and neither had a
clear recollection of the other partygoers. Neither talked to any of the Mexicans they
vaguely recalled. Unlike the small get-togethers they usually had, the party grew to about
150 people.
Jordan Bidlack admitted to stereotyping. She described four or five Mexican
males she saw at the party, and although she could only recall one tattoo on one of them,
she assumed they all had tattoos. She specifically remembered the one tattoo on the neck
region. She thought they were “sketchy” so she did not talk to them and she tried to stay
away from them. To her, they did not fit the “Sac State mold.” They dressed similarly
and were “roughly shorter than a lot of the student athletes” attending the party. More
than one had a rattail. She did not recognize any of the six photographs in the photo
lineup the defense investigator showed her and she could not remember any of their facial
features.
Ellese Dias, a former member of the golf team, was also at the party with her
boyfriend before the shooting began. She too testified that the party grew larger
throughout the evening and many people stuck out “as not fitting the typical mold of Sac
State students.” She described seven to 10 Mexicans, dressed similarly, but admitted she
did not interact with them. They were primarily in white T-shirts and jeans or shorts.
She estimated that seven to eight of the Mexicans had excessive tattoos. Like Bidlack,
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she was unable to identify anyone in the photographic lineup the defense showed her.
She did remember that three of the Mexicans had long hair.
A jury found defendant guilty of four counts of attempted murder (Pen. Code,
§§ 664/187, subd. (a)) 2 and four counts of assault with a firearm (§ 245, subd. (a)(2)).
The jury found that each of the attempted murders was willful, deliberate, and
premeditated. As to the attempted murder counts, the jury found he personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)) and personally and
intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). As
to the assault with a firearm counts, the jury found he personally inflicted great bodily
injury (§ 12022.7, subd. (a)). And as to all the counts the jury found defendant acted to
benefit a criminal street gang (§ 186.22, subd. (b)(1)) and he personally used a firearm
(§§ 12022.5, subds. (a) & (d), 12022.53, subd. (b)).
DISCUSSION
I
Gang Enhancement
Defendant contends the evidence was insufficient to sustain the jury’s finding that
he committed the substantive offenses for the benefit of a criminal street gang within the
meaning of section 186.22, subdivision (b)(1), which provides: “[A]ny person who is
convicted of a felony committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or attempted felony of which he
or she has been convicted, be punished . . . .” “Like a conviction unsupported by
substantial evidence, a true finding on a gang enhancement without sufficient support in
2 Further undesignated statutory references are to the Penal Code.
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the evidence violates a defendant’s federal and state constitutional rights and must be
reversed.” (People v. Franklin (2016) 248 Cal. App. 4th 938, 947 (Franklin).)
The evidence must establish both of the two prongs to the gang enhancement
under section 186.22, subdivision (b)(1). “First, the prosecution is required to prove that
the underlying felonies were ‘committed for the benefit of, at the direction of, or in
association with any criminal street gang.’ (§ 186.22[, subdivision ](b)(1).) Second,
there must be evidence that the crimes were committed ‘with the specific intent to
promote, further, or assist in any criminal conduct by gang members.’ ” (People v. Rios
(2013) 222 Cal. App. 4th 542, 561 (Rios).)
In deciding whether substantial evidence supports both prongs, we apply the
familiar standard of review for challenges to the sufficiency of the evidence. (In re
Daniel C. (2011) 195 Cal. App. 4th 1350, 1359.) We review the entire record in search of
reasonable and credible evidence of solid value, viewing all the evidence in the light most
favorable to the prosecution, and drawing all reasonable inferences in favor of the jury’s
findings. (People v. Ramon (2009) 175 Cal. App. 4th 843, 850 (Ramon); In re Frank S.
(2006) 141 Cal. App. 4th 1192, 1196.) We cannot, however, go beyond reasonable
inferences into the realm of speculation, conjecture, surmise, or guesswork. (Ramon, at
p. 851.) “A trier of fact may rely on inferences to support a conviction only if those
inferences are ‘of such substantiality that a reasonable trier of fact could determine
beyond a reasonable doubt’ that the inferred facts are true.” (Rios, supra,
222 Cal.App.4th at p. 564.)
Not every crime committed by a gang member is gang related. (People v. Albillar
(2010) 51 Cal. 4th 47, 60 (Albillar); Rios, supra, 222 Cal.App.4th at p. 565.) Nor can a
crime be found to be gang related simply because the perpetrator is a gang member with a
criminal history. (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) Although a lone
actor is subject to a gang enhancement, merely belonging to a gang at the time of the
commission of the charged conduct does not constitute substantial evidence to support an
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inference the sole actor specifically intended to promote, further, or assist any criminal
conduct by gang members. (Rios, at p. 566) Otherwise, as the court observed in Rios,
“gang enhancement would be used merely to punish gang membership.” (Id. at p. 574.)
Rarely is the perpetrator’s intent proven by direct evidence; usually it must be inferred
from the facts and circumstances surrounding the case. (Id. at pp. 567-568.)
A cottage industry of gang experts has grown to meet a perceived need to assist
juries in understanding all things gang related. While a gang expert is prohibited from
opining on a defendant’s specific intent when committing a crime, the prosecution can
ask hypothetical questions based on the evidence presented to the jury whether the
alleged crime was committed to benefit a gang and whether the hypothetical perpetrator
harbored the requisite specific intent. (People v. Vang (2011) 52 Cal. 4th 1038, 1045-
1046.) A hypothetical question must pose facts shown by the evidence because “[a]
hypothetical question not based on the evidence is irrelevant and of no help to the jury.”
(Id. at p. 1046.)
Indeed, there are caveats to the sufficiency of gang expert testimony to support the
imposition of a gang enhancement. General opinion testimony when offered by a gang
expert “ ‘opens the door for prosecutors to enhance many felonies as gang-related’ (In re
Frank S., supra, 141 Cal.App.4th at p. 1199), by expanding the gang enhancement statute
to cover virtually any crime committed by someone while in the company of gang
affiliates, no matter how minor the crime, and no matter how tenuous its connection with
gang members or core gang activities.” (In re Daniel C., supra, 195 Cal.App.4th at
p. 1364.) Moreover, “purely conclusory and factually unsupported opinions” that the
charged crimes are for the benefit of the gang because any violent crime enhances the
gang’s reputation is insufficient to support a gang enhancement. (People v. Ramirez
(2016) 244 Cal. App. 4th 800, 819-820 (Ramirez).)
That is not to belittle or understate the central role of gang experts in establishing
both prongs of the section 186.22 enhancement. It is certainly true “ ‘[e]xpert opinion
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that particular criminal conduct benefited a gang’ is not only permissible but can be
sufficient to support the Penal Code section 186.22, subdivision (b)(1), gang
enhancement. [Citation.]” (People v. Vang, supra, at p. 1048.) “Expert opinion that
particular criminal conduct benefited a gang by enhancing its reputation for viciousness
can be sufficient to raise the inference that the conduct was ‘committed for the benefit of
. . . a[] criminal street gang’ within the meaning of section 186.22[, subdivision ](b)(1).”
(Albillar, supra, 51 Cal.4th at p. 63.) The facts in Albillar, however, stand in stark
contrast to the facts before us and, on those facts, the Supreme Court’s deference to the
gang expert’s testimony is unremarkable.
In Albillar, three 20-something gang members, heavily tattooed with gang signs,
assisted each other in raping a 15-year-old girl in their apartment, which was cluttered
with gang paraphernalia including gang clothing, photographs of the defendants and
fellow gang members wearing gang clothing and flashing gang signs, papers with gang
graffiti, and a phone list of fellow gang members. (Albillar, supra, 51 Cal.4th at pp. 51-
52, 62.) The Supreme Court summarized the gang expert’s testimony this way:
“Because each defendant was a member of the Southside Chiques, he could and did rely
on the others’ cooperation in committing the offenses against Amanda M.: Albert
suppressed his own personal interest in having sex with the victim and immediately
yielded to the others when they asked if they could ‘get in’; without another word being
spoken, Albert and Madrigal held the victim’s legs down while Alex raped her; Albert
and Alex blocked the door while Madrigal raped her; and Alex and Madrigal remained in
the apartment while Albert raped her. Defendants knew, because of the nature of the
gang, that no one would be a ‘rat,’ which would be ‘one of the worst things, if not the
worst thing the gang can have within itself.’ ” (Id. at p. 61.)
The gang expert testified that, not only did gang members work in association, but
also that the rapes were perpetrated to benefit the Southside Chiques gang. (Albillar,
supra, 51 Cal.4th at p. 63.) He responded to a hypothetical based on the facts of the
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charged crimes where the victim knew that at least two of the perpetrators were gang
members. The expert stated that “More than likely this crime is reported as not three
individual named Defendants conducting a rape, but members of [Southside] Chiques
conducting a rape, and that goes out in the community by way of mainstream media or by
way of word of mouth. That is elevating [Southside] Chiques’ reputation to be a violent,
aggressive gang that stops at nothing and does not care for anyone’s humanity.” (Id. at
p. 63.)
Here, by contrast, the only shred of evidence possibly connecting the shooting to
VGLN is the fact defendant was a tattooed, validated gang member and there were four
to 10 other Mexicans at the party, some of whom had tattoos. Most striking is the
absence of gang evidence. Unlike the defendants in Albillar, there is no evidence that
any of the visible tattoos on defendant or any of the tattoos on the other Mexican
partygoers were gang related and there is no evidence that any of the other Mexicans
were present during the shooting, let alone assisting defendant in any way. There is no
evidence the other Mexicans at the party were members of any gang whatsoever. There
is no evidence that any participant shouted out a gang name or threw up a gang sign.
There is no evidence defendant or any of the other Mexicans were wearing gang colors.
There is no evidence any of the students at the party knew defendant was a member of a
gang. There is no evidence that any rival gang members were present at the party or that
the shooting was done in retaliation or retribution for prior gang activity. There is no
evidence the shooting occurred in gang territory. None of the students who testified at
trial attributed the shooting to a gang. Thus, there was no eyewitness testimony that even
hinted the shooting was gang related.
The only evidence offered in support of the gang enhancement was the testimony
of Detective Sample, the prosecution’s gang expert. He too was asked a hypothetical
based on the prosecution’s evidence. The prosecutor inquired: “And if a Norteño gang
member crashes a party, after the party shoots a gun several times in the air, and then
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proceeds to shoot several college students for trying to assist a friend of that gang
member, would you think that that shooting of the college students was for the benefit of
and in association with or at the direction of the Norteños?”
Detective Sample answered affirmatively and explained his rationale. “Again, we
talked about the reputation for Norteños. You have a violent act, like this shooting,
especially in a public setting, that’s going to instill fear in anybody who knows about that
shooting occurring. That fear is going to be now attributed to the reputation of the
Norteños.
“And an individual who committed that crime being a specific Norteño, he also
will receive that same benefit as an enhanced reputation. He’s going to be more feared.
He’s also going to enhance his reputation in the gang as somebody not to be trifled with
and is to be feared.
“So overall the crime would be that violent reputation would transpose itself
straight on to the Norteño gang.”
In this gang expert’s view, therefore, essentially any shooting by a gang member is
gang related because the use of violence enhances the gang member’s reputation, and
thereby inures to the gang’s benefit by instilling fear in the community. Many courts
have soundly rejected such a sweeping generalization untethered, as it is, to specific
evidence of both prongs of the gang enhancement. (See, e.g. Ramirez, supra,
244 Cal.App.4th at p.819; In re Daniel C., supra, 195 Cal.App.4th at p. 1363; People v.
Ochoa (2009) 179 Cal. App. 4th 650, 662 (Ochoa); Ramon, supra, 175 Cal.App.4th at
p. 853.) And the glaring absence of evidence connecting the shooting to a gang, other
than the mere fact the perpetrator was a gang member, leaves the evidence woefully short
of the sufficiency needed to sustain the enhancement. In short, the prosecution’s
evidence, including the gang expert’s speculation about the hypothetical benefit to the
Norteños and the hypothetical shooter’s specific intent to promote, further, or assist the
gang is far more analogous to cases in which the evidence was found insufficient to
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support the enhancement than to the abundance of gang-related evidence in Albillar,
supra, 51 Cal. 4th 47. 3
In In re Frank S., a minor was charged with the possession of a dirk or dagger and
a small bindle of methamphetamine, as well as false representation to a police officer.
(In re Frank S., supra, 141 Cal.App.4th at p. 1195.) He was also carrying a red bandana.
(Ibid.) He was alone at the time he was stopped on his bicycle with the knife and told the
police officer he had been jumped two days earlier and needed the knife for protection
against “the Southerners.” (Ibid.) During intake, he described himself as an affiliate of
the Norteños. (Ibid.) The gang expert opined that the knife benefits the Norteños
because “ ‘it helps provide them protection should they be assaulted by rival gang
members.’ ” (Id. at p. 1199.) The court found the evidence insufficient to support the
gang enhancement, emphasizing the lack of gang-related evidence. “The prosecution did
not present any evidence that the minor was in gang territory, had gang members with
him, or had any reason to expect to use the knife in a gang-related offense.” (Ibid.) The
court rejected the notion that the gang expert’s opinion that the minor harbored the
specific intent to use the knife for a gang-related purpose and that the knife, under these
circumstances, benefited the Norteños, constituted substantial evidence to support the
enhancement. (Ibid.)
In Ochoa, the gang expert testified the carjacking and weapon possession
benefited the gang “by providing general transportation to the gang’s members, by
enabling transportation of narcotics for sale by the gang, by enabling transportation to
3 We characterize the evidence as abundant in Albillar in comparison to the
prosecution’s meager gang-related evidence in the case before us, but we note that the
dissenting justices found even that evidence insufficient to sustain the gang enhancement
because the three gang members were family members, the rapes occurred in the family
apartment, which was not in gang territory, and rapes were not condoned, let alone
celebrated, within the Hispanic gang culture. (Albillar, supra, 51 Cal.4th at pp. 69, 71
(conc. & dis. opn. of Werdegar, J.).)
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commit further crimes by the gang, by providing economic benefit to the gang by sale of
the vehicle, by elevating defendant’s status within the gang, and by raising the gang’s
reputation in the community.” (Ochoa, supra, 179 Cal.App.4th at p. 656.) He
acknowledged, however, there was no evidence the defendant transported any gang
members or claimed responsibility for the carjacking in the name of the gang. (Ibid.)
The defendant, a self-identified member of the Moreno Trece, was alone when he
approached the victim sitting in his mother’s car, pointed a gun at his face, and demanded
that he give him the car. (Id. at p. 653.) The expert’s testimony, “as to how defendant’s
crimes would benefit Moreno Valley 13, was based solely on speculation, not evidence.”
(Id. at p. 663.)
The court found the evidence insufficient to sustain the gang enhancement. The
opinion provides a penetrating summary of what was lacking. “Defendant did not call
out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti while
committing the instant offenses. There was no evidence of bragging or graffiti to take
credit for the crimes. There was no testimony that the victim saw any of defendant’s
tattoos. There was no evidence the crimes were committed in Moreno Valley 13 gang
territory or the territory of any of its rivals. There was no evidence that the victim of the
crimes was a gang member or a Moreno Valley 13 rival. Defendant did not tell anyone,
as the defendant did in [People v. ]Ferraez [(2003) 112 Cal. App. 4th 925], that he had
special gang permission to commit the carjacking. [Citation.] Defendant was not
accompanied by a fellow gang member.” (Ochoa, supra, 179 Cal.App.4th at p. 662, fn.
omitted.)
In re Daniel C. distinguishes the sufficiency of the evidence to support the first
prong from the second prong of the gang enhancement. There was substantial evidence
to support the first prong, that is, that the robbery was committed “in association with”
(§ 186.22, subd. (b)(1)) a criminal street gang because the defendant, a gang member,
was accompanied by an admitted Norteño and another young affiliate of the gang. (In re
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Daniel C., supra, 195 Cal.App.4th at pp. 1358-1359.) They all wore red. (Id. at p. 1359.)
But the court found the evidence was insufficient that the defendant committed his crime
“with the specific intent to promote, further, or assist in any criminal conduct by gang
members.” (Id. at p. 1361.) Again the deficiency was in the gang expert’s testimony.
“Here, [the gang expert] based his opinion that appellant committed the robbery to
further the interests of the Norteño gang on the premise that it was a violent crime, and
gangs commit violent crimes in order to gain respect and to intimidate others in their
community. But, nothing in the record indicates that appellant or his companions did
anything while in the supermarket to identify themselves with any gang, other than
wearing clothing with red on it. No gang signs or words were used, and there was no
evidence that [the assistant manager of the supermarket] or any of the other persons who
witnessed the crime knew that gang members or affiliates were involved. Therefore, the
crime could not have enhanced respect for the gang members or intimidated others in
their community, as suggested by [the gang expert.]” (In re Daniel C., supra,
195 Cal.App.4th at p. 1363.)
The gang expert testimony also came up short in Rios. “The only facts that the
prosecution asked the expert to consider in the hypothetical were (1) the person was a
gang member and (2) he possessed a gun. In our view this was insufficient to impose the
gang enhancement (§ 186.22[, subd. ](b)(1)) on the carrying a loaded firearm in a vehicle
count (former § 12031, subd. (a)(1); count 1). Although Albillar instructs that the
prosecution may rely on the charged offense as the criminal conduct supporting the
enhancement when the defendant acts in concert with others, in a case such as this, where
the defendant acts alone, the combination of the charged offense and gang membership
alone is insufficient to support an inference on the specific intent prong of the gang
enhancement. Otherwise, the gang enhancement would be used merely to punish gang
membership. “As the court stated in Rodriguez, ‘[m]ere active and knowing participation
in a criminal street gang is not a crime.’ ([People v. ]Rodriguez[ (2012)] 55 Cal. 4th
16
[1125,] 1130.) We therefore hold that the expert testimony in response to the
hypothetical in this case was insufficient to support an inference that defendant carried
the gun in the vehicle with the specific intent required for the gang enhancement.” (Rios,
supra, 222 Cal.App.4th at pp. 573-574.)
The evidence missing was the same as in In re Frank S., Ochoa, and the case
before us. “[T]here was no evidence that defendant was in Norteño territory or rival gang
territory when he stole the car; that he called out a gang name, displayed gang signs or
otherwise stated his gang affiliation; or that the victims of the car theft were rival gang
members or saw his tattoos or gang clothing.” (Rios, supra, 222 Cal.App.4th at p. 574.)
A pattern emerges in the challenges to gang expert testimony. Echoing the
testimony offered in In re Frank S., Ochoa, and Rios, the gang expert in Franklin also
opined that the defendant made criminal threats, assaulted, and falsely imprisoned his
victim for the benefit of a criminal street gang, particularly by instilling fear in the
victims and their larger community. (Franklin, supra, 248 Cal.App.4th at pp. 943, 950.)
But there was no evidence that any of the defendant’s fellow gang members were aware
of the crimes or participated in them. There was no evidence showing the defendant
committed the crimes in association with other gang members. Given the lack of
evidentiary support for the gang expert’s testimony, the court struck the gang allegations.
(Id. at p. 952.)
The Attorney General argues that Detective Sample’s testimony provides ample
evidence defendant specifically intended to promote, further, or assist the commission of
crimes by other gang members. The Attorney General cites to Detective Sample’s
testimony that defendant stood out because he had tattoos on his face, neck, arms, and
fingers, the other Mexicans also had tattoos and dressed similarly to defendant, and he
fired gunshots to intimidate the college students and to further the gang’s reputation.
Cumulatively, this testimony is as unsubstantiated and insubstantial as the gang expert
testimony found lacking in In re Frank S., Ochoa, Rios, and Franklin.
17
Essentially, Detective Sample testified to no more than the fact a Mexican tattooed
gang member was involved in a shooting and possibly three of the other Mexicans at the
party, who appeared to be his companions, all had tattoos. Although the Attorney
General characterizes the tattoos as “gang tattoos” there was no evidence whatsoever that
any of his Mexican companions’ tattoos were gang related. Nor were any of defendant’s
visible tattoos. Rather the Attorney General ascribes a gang connotation to any tattoo, an
inference based solely on impermissible speculation. Given that defendant had tattooed
over the gang-related symbols on his fingers and the Nutty North tattoo was not visible to
the partygoers, we conclude the mere presence of tattoos was insufficient to sustain a
gang enhancement.
And, as in all of the cited cases, there simply was no other evidence to support the
enhancement. Missing was all evidence typical of crimes committed for the benefit of
the gang and intended to promote, further, or assist the commission of crimes by gang
members—gang colors, gang clothing, gang accruements, gang signs, gang epithets, help
by other gang members. Here there is no evidence any of the college students knew of
defendant’s gang affiliation. The evidence consists only of a gang member committing a
violent crime alone. The courts in the above-cited cases have found such a dearth of
evidence insufficient for all the reasons we have discussed at length and we follow their
lead in striking the gang enhancement for lack of substantial evidence to support it. 4
II
Premeditated Attempted Murder Life Terms
Pursuant to section 664, attempted murder is punishable with a term of five, seven,
or nine years, unless the fact that the attempted murder was willful, deliberate, and
premeditated is alleged in the accusatory pleading and found true by the trier of fact, in
4 Because we must strike the gang enhancement for insufficiency of the evidence, we
need not address the multiple other challenges to the gang enhancement defendant raises.
18
which case the defendant is subject to life imprisonment. Defendant contends his life
sentence was unauthorized and violated his constitutional right to due process because the
prosecutor failed to allege the attempted murder counts were committed willfully,
deliberately, and with premeditation as required by section 664. He is correct and the
Attorney General does not contend otherwise. But the Attorney General insists defendant
forfeited his objection by failing to challenge the issue in the trial court. The question is
whether the mere mention of the possibility of an enhanced sentence for premeditated
attempted murder during the court’s discussion of unrelated jury instructions imparts the
notice required by due process as described in People v. Houston (2012) 54 Cal. 4th 1186
(Houston) or whether we should adopt the rationale of People v. Arias (2010)
182 Cal. App. 4th 1009 (Arias) in holding the sentence was unauthorized in light of the
prosecution’s failure to satisfy the express statutory requirement coupled with the failure
to advise defendant of the potential enhanced penalty.
We begin with Arias. Arias, a gang member, shot three African-American males
in gang territory, one of whom died. (Arias, supra, 182 Cal.App.4th at pp. 1012-1014.)
His defense, like defendant’s, was misidentification. (Id. at p. 1015.) Arias was charged
with one count of first degree murder and two counts of attempted first degree murder,
but the information did not allege that the attempted murders were willful, deliberate, and
premeditated. (Id. at p. 1017.) The prosecution never sought to amend the information.
(Ibid.) As here, the judge did instruct “that if the jury found defendant guilty of
attempted murder, it must make a separate determination of whether the prosecution
proved the attempted murder was done willfully and with premeditation and
deliberation.” (Ibid.) The jury did not make any express findings as to premeditation and
deliberation, but did find defendant guilty of two counts of “ ‘first degree attempted
murder.’ ” (Ibid.) The trial court sentenced Arias to life in prison pursuant to section 664
for the attempted murder convictions. (Arias, at p. 1017.)
19
Like defendant, Arias argued the life term was unauthorized. The Court of Appeal
agreed. The prosecution, the court explained, “failed to comply with the unambiguous
pleading requirement set forth in section 664, subdivision (a).” (Arias, supra,
182 Cal.App.4th at p. 1017.) Following the reasoning of the Supreme Court in People v.
Mancebo (2002) 27 Cal. 4th 735 (Mancebo), the court struck the life sentences based on
the plain meaning of the statute and due process considerations. “[I]n addition to the
statutory requirements that enhancement provisions be pleaded and proven, a defendant
has a cognizable due process right to fair notice of the specific sentence enhancement
allegations that will be invoked to increase punishment for his crimes.” (Id. at p. 747.)
Mancebo was a one strike case that did not involve section 664. But, like section
664, the pertinent one strike statute provided enhanced penalties only if any of the
qualifying circumstances “is alleged in the accusatory pleading pursuant to this section,
and is either admitted by the defendant in open court or found to be true by the trier of
fact.” (§ 667.61, subd. (o); Mancebo, supra, 27 Cal.4th at p. 742.) The information
generally alleged the existence of multiple victims, albeit not specifically within the one
strike law allegations. (Mancebo, at p. 745.) At sentencing, in order to impose a one
strike law sentence and a firearm enhancement without improper double use of one
finding, the trial court utilized the multiple victim circumstance under section 667.61,
subdivision (e)(5). (Mancebo, at pp. 739-740.)
The court found the sentence was unauthorized. Nothing in the charging
documents or pleadings “informed defendant that if he was convicted of the underlying
charged offenses, the court would consider his multiple convictions as a basis for One
Strike sentencing under section 667.61, subdivision (a). Thus, the pleading was
inadequate because it failed to put defendant on notice that the People, for the first time at
sentencing, would seek to use the multiple victim circumstance to secure indeterminate
One Strike terms under section 667.61, subdivision (a) and use the circumstance of gun
20
use to secure additional enhancements under section 12022.5(a).” (Mancebo, supra,
27 Cal.4th at p. 745.)
Similarly, no information or other pleading gave Arias notice of the life terms he
could receive if convicted of attempted first degree murder. The court found the lack of
notice more egregious than in Mancebo. “As we have pointed out, the lack of notice was
greater in [Arias’s case] because nothing in the information gave [him] reason to suspect
the enhanced punishment statute for attempted murder applied to him.” (Arias, supra,
182 Cal.App.4th at p. 1020.) The court rejected the Attorney General’s characterization
as an imperfection in the form of the pleading. “This was no mere formal defect in the
information. Rather, defendant was not given notice of the special sentencing
enhancement that would be used to increase his punishment from a maximum of nine
years to a life term. Nor is this error reviewable under the abuse of discretion or harmless
error analysis applicable to situations in which the information was amended during trial.
Defendant’s charging document was never amended.” (Ibid.) In short, the prosecution
had not complied with the notice requirements imposed by section 664, the defendant had
no actual notice of his risk of an enhanced sentence, the life terms were stricken, and the
case was remanded for resentencing. (Arias, at pp. 1020-1021.)
Here, the Attorney General insists the issue was forfeited, despite the flagrant
deficiency in the accusatory pleading in violation of section 664, based on the holding in
Houston, supra, 54 Cal. 4th 1186. An unhappy alumnus returned to the high school he
had attended three years earlier and shot and killed four people, including one of the
teachers who had given him a failing grade, and wounded many others. (Id. at pp. 1192,
1194.) On appeal, he too argued he was improperly given life sentences because the
indictment failed to allege that the attempted murders were willful, deliberate, and
premeditated. (Id. at p. 1225.) The Supreme Court upheld the life terms on facts very
different from those presented in Arias. The issue, it turns out, is rooted in due process
concerns and the fundamental right of a criminal defendant to have sufficient notice of
21
the potential punishment he faces. In Houston, unlike Arias, the issue arose midtrial and
the defendant was given explicit notice of the possible enhanced punishment. (Houston,
at pp. 1226-1227.)
Again, the prosecution failed to comply with section 664’s pleading requirement.
But there the similarity ends. In Houston, the trial court raised the issue at the end of the
first day of the defendant’s presentation of his case. (Houston, supra, 54 Cal.4th at
p. 1226.) The court discussed the issue at some length and put the defendant on notice
that the verdict forms would ask the jury to distinguish the two types of attempted
murder. “ ‘And the final thing that is not completely clear in the verdict form, because I
don’t think I had it clear in my mind when I was putting it together, is the distinction
between the two kinds of attempted murder, and if I understand what the prosecution is
doing in [the attempted murder counts], I believe the prosecution is intending to charge
premeditated attempted murder. [¶] If that’s not right, you should tell me now, or as
soon hereafter as you are able to, because it would help me. [¶] In other words, the type
of attempted murder [that is] punished by life imprisonment rather than five, seven,
nine.’ ” (Ibid.)
A week later, the trial court announced it would include deliberate and
premeditated attempted murder as a special finding. (Houston, supra, 54 Cal.4th at
p. 1226.) After the close of evidence, the trial court instructed the jury to determine
whether the attempted murders were willful, deliberate, and premeditated. (Ibid.) The
defendant registered no objection. The Supreme Court concluded: “On the facts here,
defendant received adequate notice of the sentence he faced, and the jury made an
express finding that the attempted murders were willful, deliberate, and premeditated. A
timely objection to the adequacy of the indictment would have provided an opportunity to
craft an appropriate remedy. Because defendant had notice of the sentence he faced and
did not raise an objection in the trial court, he has forfeited this claim on appeal.” (Id. at
p. 1228.)
22
The Supreme Court did not overrule Arias. The court noted that the jury had been
properly instructed but conceded it was unclear from the record when the trial court
issued its proposed instructions and special findings and, most importantly, whether the
potential life terms were discussed. (Houston, supra, 54 Cal.4th at p. 1229.) Apparently,
the Supreme Court was undecided whether Arias received adequate notice, and therefore,
it left the case intact.
The Attorney General maintains that defendant received notice comparable to the
shooter in Houston. The Attorney General points out that during a discussion whether
the court should give the jury an unanimity instruction, the prosecutor mentioned, “We
haven’t discussed voluntary manslaughter, but let’s say with the two attempted
murder[s], they can find him guilty of attempted murder with premeditation or guilty of
regular attempted murder, and they can disagree on for which victim it was premeditated
attempted murder and which one was just normal attempted murder. So I can see in that
situation where that instruction [on unanimity] would apply.” In the Attorney General’s
view, in essence, the prosecution can ignore its responsibility to plead premeditated
attempted first degree murder as required by section 664, and a defendant forfeits his or
her right to challenge the deficiency as long as the prosecutor at some point during trial
mentions or alludes to the two types of attempted murder. Such a rule would eviscerate
section 664, do violence to the meaning and rationale of Houston, and undermine any
fair-minded understanding of notice and due process.
We begin with emphasis on the plain meaning of the statute. The Legislature
clearly states that a sentence with a maximum term of nine years cannot be enhanced to a
life term unless “the fact that the attempted murder was willful, deliberate, and
premeditated is charged in the accusatory pleading and admitted or found to be true by
the trier of fact.” (§ 664, subd. (a).) Here no one disputes that the prosecution failed to
allege the fact that the attempted murders were willful, deliberate, and premeditated.
23
Thus, according to the terms of the statute, life terms cannot be imposed. This conclusion
is consistent with the holdings in Arias and Mancebo.
Nor do we believe that Houston dictates a different result. In Houston, the trial
court directly and plainly informed the defendant that it was planning to instruct the jury
on the two options for attempted murder. Not only did the trial court expressly raise the
issue, but it invited a response from the parties. Receiving none, it again informed the
defendant that it had prepared a verdict form directing the jury to make a special finding
whether the attempted murders were willful, deliberate, and premeditated. Having been
given notice twice during the trial that he would be subject to an attempted first degree
murder verdict, the court then instructed on the additional elements necessary to find
premeditated attempted murder. As a result, even though the prosecution violated section
664’s directive to give the defendant advance notice in the accusatory pleading, the court
found that he was given ample notice of the charges against him and the opportunity to
object.
Here, by contrast, it is not even clear on the record whether defendant was present
when the prosecutor, not the judge, while arguing the propriety of an unanimity
instruction, made an off-hand reference to the two types of attempted murders and the
possibility the jury might convict him of different degrees for different victims. Unlike
the trial court in Houston, which clearly telegraphed the issue for the defendant, the
prosecutor’s brief allusion to the attempted murder counts when discussing an unrelated
jury instruction did not give defendant fair notice that his sentence could jump from a
maximum of nine years to a life term for each of the four counts. In short, we find
Houston factually inapposite.
Both Arias and Houston recognize the due process implications of a failure to
comply with section 664. While the Supreme Court was willing to forgive the
prosecutor’s transgression in Houston, it was precisely because the trial court had
provided what the prosecutor had failed to do; that is, the court was satisfied the
24
defendant was accorded fair notice of the charges he faced and an adequate opportunity
to object or to tailor his defense. In Arias, however, the court struck the life term when
the violation of section 664 compromised the defendant’s right to due process. Here, too,
the violation of section 664 deprived defendant of fair notice that he would be subject to a
life term if the jury found him guilty of premeditated attempted murder. Because there is
no showing in this record that defendant was present, was informed of the charges against
him, or that he waived his right to object, we conclude that, as in Arias, we must strike
the four life terms. The sentence was unauthorized and we can find no forfeiture on these
facts.
III
Text Messages
It is important to put defendant’s next issue into context because, as framed, it
appears disproportionately impactful. Five eyewitnesses identified defendant as the
shooter. One of the five, Jacarri Brown, was a friend and classmate of Hayes,
defendant’s girlfriend. Two weeks after the shooting, Hayes gave birth to defendant’s
son, who was born with special needs. Apparently overwhelmed and distraught, she sent
a series of text messages to Brown. She did not testify at trial.
Brown, however, did testify. He provided a detailed description of the events
leading up to, and including, the shooting. It was during cross-examination that defense
counsel explored Brown’s relationship with Hayes, including their numerous and lengthy
text messages. He asked a series of questions to expose Brown’s potential bias. “Do you
recall that after Tino Perez was arrested that Sara-Tessa Hayes confronted you about your
identification of Tino Perez?” “And she texted you, correct?” “And you texted her back,
correct?” “It wasn’t just one text to her. It was more than ten texts, right?” “And they
weren’t short texts . . . . They were long texts, correct?” “She was accusing you of being
a liar for falsely accusing Tino Perez, right?”
25
Brown testified Hayes, in the text messages, confronted him about his
identification of defendant. He reported that Hayes “was asking me what had happened
that night and she knew he was there.” But he denied that she was accusing him of
“being a liar for falsely accusing” defendant or for falsely identifying him. According to
Brown, “[t]here came a point where she told me I was snitching and that he wouldn’t
have done that to me if it was the other way around.” Brown assured Hayes he would
help take care of the baby while defendant was in prison.
Defense counsel further probed as to why Brown had kept the text messages secret
and had not divulged them to the police. When asked if he had saved the text messages,
Brown stated that he was not sure. Brown found all the saved text messages and, during
the lunch break, the judge and lawyers went over them. The court found some of text
messages relevant, and others, irrelevant. The court then informed the jury, “So we’re
going to recall Mr. Brown for a limited purpose of going over some of the information in
these text messages as counsel views them, that they wanted to put them in, and I have at
least ruled that they are relevant in the sense that you should at least listen to them and
ultimately do with them as you deem appropriate.”
The prosecution thereafter recalled Brown to testify to their contents. In one text
message, Hayes wrote: “Well, the man that you picked out of the lineup is my son’s dad.
You sent him to jail two weeks before our baby was born. You took everything away
from us. My son was born underdeveloped with a lot of medical problems, so my
boyfriend can’t be there for a sick baby, and I can’t even go back to work because it’s
just me to take care of my son’s medical needs. They want to give Tino -- that means my
son grows up without his dad. So I just thought you should know what you did to me and
my family, and had it been the other way around, Tino wouldn’t have gone out like no
snitch. What you did was wrong. Good night.”
Brown suggested that they end their conversation. Sometime later, Hayes
apologized, again by text message. The messages read: “I’m sorry for everything I said
26
to you before,” and “you didn’t ruin my family. He ruined us himself. I was just too
shortsighted and lonely to realize that. I’m just not making excuses for him anymore. He
did what he did and it was wrong, just like you said,” and “instead of showing concern,
he changed the subject and asked me to lie and tell you that you must have recognized
him from when he would come to Sac State to see me and to make sure you don’t testify
because they are getting ready for trial.” Defense counsel registered his objections to the
admissibility of all of these text messages.
Later during the trial, the prosecutor wanted to recall Brown to expand on the
content of one of the text messages. The court denied the prosecutor’s request.
On appeal, defendant challenges the admissibility of the text messages on four
grounds: lack of foundation, hearsay, more prejudicial than probative, and an ineffective
limiting instruction. Evidentiary rulings are reviewed for an abuse of discretion. (People
v. Thomas (2011) 51 Cal. 4th 449, 485.)
Defendant first contends the prosecution failed to introduce a sufficient foundation
to authenticate the text messages. He complains the prosecution did not call Hayes to
testify that she wrote the texts and insists that “in a technological era where
impersonation is often a simple task,” the admissibility of text messages raises troubling
concerns about authenticity, thereby impinging on his right to due process and a fair trial.
We turn to well established rules of authentication and defer to the trial court’s broad
exercise of discretion. (In re K.B. (2015) 238 Cal. App. 4th 989, 995.)
While the scope of the trial court’s discretion is exceedingly broad, the scope of
the foundational question presented is quite narrow. “The foundation requires that there
be sufficient evidence for a trier of fact to find that the writing is what it purports to be,
i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is necessary is
a prima facie case. ‘As long as the evidence would support a finding of authenticity, the
writing is admissible. The fact conflicting inferences can be drawn regarding authenticity
27
goes to the document’s weight as evidence, not its admissibility.’ ” (People v. Goldsmith
(2014) 59 Cal. 4th 258, 267.)
“Importantly, ‘the fact that the judge permits [a] writing to be admitted in evidence
does not necessarily establish the authenticity of the writing; all that the judge has
determined is that there has been a sufficient showing of the authenticity of the writing to
permit the trier of fact to find that it is authentic.’ [Citation.] Thus, while all writings
must be authenticated before they are received into evidence ([Evid. Code, ]§ 1401), the
proponent’s burden of producing evidence to show authenticity ([Evid. Code, ]§ 1400) is
met ‘when sufficient evidence has been produced to sustain a finding that the document is
what it purports to be. [Citation.]’ [Citation.] The author’s testimony is not required to
authenticate a document ([Evid. Code, ]§ 1411); instead, its authenticity may be
established by the contents of the writing ([Evid. Code, ]§ 1421) or by other means
([Evid. Code, ]§ 1410 [no restriction on the ‘means by which a writing may be
authenticated’]).” (People v. Valdez (2011) 201 Cal. App. 4th 1429, 1434-1435.)
Brown testified that screenshots of his phone showed “CSUS, Sara.” He identified
an exhibit depicting screen shots of their text messages on his phone. He also described
the content of their texts in his testimony, content which supported the trial court’s
exercise of discretion in finding a sufficient foundation for admissibility. There was no
abuse of discretion in admitting the text messages for the jury to ultimately decide on
their authenticity.
Defendant also contends the text messages are inadmissible hearsay. Brown’s
texts do not constitute hearsay because he testified at trial and authored his own text
messages. (Evid. Code, § 1200, subd. (a).) The text messages from Hayes were not
admitted for the truth of the matters asserted but to rehabilitate Brown’s testimony on
redirect. On cross-examination, defense counsel insinuated that Brown had hopes of
starting a romantic relationship with Hayes, thereby establishing a motive for
misidentifying her boyfriend as the shooter and thereby removing him from the scene.
28
Without understanding the stream of text messages to provide context, the cross-
examination cast doubt on Brown’s credibility as an eyewitness. Thus, the trial court did
not abuse its discretion by admitting the text messages for the permissible nonhearsay
purpose of rehabilitating Brown’s credibility. The fact the court may have also admitted
the evidence on erroneous grounds is inconsequential because there was a legitimate
basis for admitting the evidence. (People v. Brown (2004) 33 Cal. 4th 892, 901.)
Even if the evidence surmounts the authentication and hearsay obstacles,
defendant maintains the trial court abused its discretion by allowing evidence that was
substantially more prejudicial than probative and, therefore, violated Evidence Code
section 352 and his right to due process. He argues that Hayes’ representations that
defendant had asked her to lie, that he was present at the party, and that he had ruined her
family were unduly prejudicial, particularly because she did not testify and he did not
have the opportunity to cross-examine her.
But defendant forgets that he opened the door to the admission of the text
messages when, during cross-examination, he impugned Brown’s credibility by creating
the impression Brown had something to hide given his secret text messaging with Hayes.
As previously discussed, the text messages were admitted to rehabilitate his credibility.
The trial court certainly did not abuse its discretion by allowing the admission of the text
messages and the questioning of Brown about them on redirect to provide the jury with
the whole story and not the misleading impression defense counsel had generated during
cross-examination.
Lastly, defendant contends the limiting instruction was useless. During the
prosecutor’s closing argument, defense counsel objected and the trial court admonished
the jury that the texts were not admitted for their truth. Defendant argues the limiting
instruction was given too late, and because it contradicted an earlier instruction, it was
ineffectual. It is true that the court initially, after a laborious process of determining
which texts were relevant and which were not, told the jurors they could “do with them as
29
you deem appropriate.” We do not, however, believe the earlier comment pertaining to
relevancy contaminated the court’s later, careful admonition that the text messages were
not admitted for their truth. The messages themselves were admissible as discussed ante,
were not unduly prejudicial, and the limiting instruction properly guided the jury not to
consider them for the truth of their comments. There was no abuse of discretion.
IV
Prosecutorial Misconduct
Defendant accuses the prosecutor of undermining the presumption of innocence,
misstating the reasonable doubt standard, disparaging the defense function, and
mischaracterizing the purpose for which the text messages were admitted during closing
argument. The arguments, in defendant’s view, constitute prosecutorial misconduct. He
further argues that his lawyer and the court let him down as well; his lawyer by failing to
object to the improper argument except to the prosecutor’s remarks about the text
messages, a dereliction of duty that deprived him of his constitutional right to competent
counsel, and the trial court by denying his motion for a new trial based on the improper
argument about the text messages. We find nothing deceptive or reprehensible in the
closing argument and nothing so egregious it rendered the trial fundamentally unfair. As
a result, his lawyer had no reason to object and the trial court properly denied the motion
for a new trial.
Under federal jurisprudence, a prosecutor’s misconduct constitutes a deprivation
of due process when the pattern of conduct is so egregious that it infects the trial with
unfairness. (People v. Bennett (2009) 45 Cal. 4th 577, 594-595.) Under state
jurisprudence, the misconduct must involve the use of deceptive or reprehensible
methods to persuade the court or the jury. (People v. Cash (2002) 28 Cal. 4th 703, 733.)
When the alleged misconduct involves argument to the jury, “the question is whether
there is a reasonable likelihood that the jury construed or applied any of the complained-
30
of remarks in an objectionable fashion.” (People v. Berryman (1993) 6 Cal. 4th 1048,
1072.)
Defendant first objects to the following argument by the prosecutor: “It’s time for
him to take responsibility for what he did. Because the way our justice system works is
this. When you’re accused of a crime, no matter how guilty you know you are, you have
the right in our country to have 12 citizens from the community leave their job, leave
their retirement and have to sit through a boring trial and hear the evidence. No matter
how guilty you know you are. Every person in this country has that right. And you’ve
given him that right. You’ve done that.”
Defendant contends it is reasonably likely that the jurors understood the
prosecutor’s argument to mean the presumption of innocence is a farce, nothing more
than a legal fiction. We disagree. The prosecutor said nothing to denigrate the
presumption of innocence and no reasonable juror was likely to construe the argument in
the manner defendant suggests. Based on the overwhelming evidence of guilt that the
prosecutor had already laid out for the jury in meticulous detail including the five
eyewitness identifications, defendant’s jailhouse telephone call during which he admitted
shooting four people, and his recorded police interview during which he lied to the
officer, the prosecutor assured the jurors that defendant had been accorded his
fundamental right to a fair trial. The prosecutor emphasized that a criminal defendant has
that right to a fair trial even if he knows he is guilty. This argument does not suggest
defendant is not presumed innocent, only that he retains the right to a determination of his
guilt or innocence by his peers even though he may be guilty. The argument is neither
deceptive nor reprehensible.
Next defendant contends the prosecutor twice misstated the reasonable doubt
standard, once during his initial closing argument and again during rebuttal. The
prosecutor argued: “Rule number two, you cannot go back there and play devil’s
advocate. This is not a game. This is a real life courtroom. You can’t go back there and
31
start a sentence with ‘what if.’ You can’t go back there and say, ‘Hey, I feel that he’s
guilty, but let’s just throw out this hypothetical.’ You are judges of facts. You base your
decision on the facts that you have before you.”
During rebuttal, the argument spoke more directly about reasonable doubt. He
explained: “Reasonable doubt. You already have the description of what reasonable
doubt is. But I want to make sure we all know. It is not beyond all possible doubt. It is
not I’m 100 percent sure that it happened.
“Because this is not Back to the Future. I can’t call Marty McFly and we get into
a car and we all look down and see exactly what happened. This is not A Christmas Story
where there’s Ebenezer Scrooge and we can have an angel taking us to the scene. We
weren’t there. So reasonable doubt is I’m 100 percent sure it happened. That is not
reasonable doubt.
“You can have doubt and still find someone guilty.”
We begin with the prosecutor’s explanation of reasonable doubt. Many courts
have admonished prosecutors not to stray from the time-tested description of reasonable
doubt embodied in the standardized jury instructions. (People v. Centeno (2014)
60 Cal. 4th 659, 667; People v. Medina (1995) 11 Cal. 4th 694, 744-745; People v.
Johnson (2004) 119 Cal. App. 4th 976, 985-986.) Here the prosecutor reminded the jurors
they had been given such an instruction. CALCRIM No. 220 states: “The evidence need
not eliminate all possible doubt because everything in life is open to some possible or
imaginary doubt.” The prosecutor then attempted to paraphrase CALCRIM No. 220 that
the evidence need not eliminate all possible doubt, which is an accurate statement of the
law.
But defendant contends the prosecutor’s argument diluted his burden of proof by
essentially suggesting the jurors did not need to be convinced defendant was guilty, and
could convict him even if they had a reasonable doubt, because absolute certainty was
impossible. Defendant’s argument is quite a stretch; one we do not believe reasonable
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jurors would make. Nothing in the argument or instructions hinted that the jurors did not
need to be convinced that defendant was guilty. To the contrary, they were properly
instructed on the prosecution’s burden of proof, the elements of the offense, and, most
importantly, that the instructions prevailed over any contradictory comments by the
attorneys. The prosecutor’s reminder, consistent with CALCRIM No. 220, that the
evidence need not eliminate all possible doubt, did not mean they could find defendant
guilty even if they had a reasonable doubt. Defendant’s contention to the contrary is
unreasonable.
The prosecutor’s initial closing argument, in context, is even more innocuous. At
the outset, he attempted to establish some basic ground rules for the jury to follow. The
first rule, the prosecutor argued to the jury, was that they alone were the arbiters of the
facts and the facts determined guilt or innocence. It is the prosecutor’s second rule that
has come under fire. Again the emphasis was on the jury’s essential role as fact finder
and he instructed the jurors to base their decision on the facts they had before them. The
second rule, insofar as it embodied this basic principle, is above reproach. Where the
prosecutor’s argument may have been slightly misleading is when he told them not to
play devil’s advocate, not to ask “what if” questions, and not to throw out hypotheticals.
It is true, as defendant suggests, that the jurors should ask hard questions and it is entirely
appropriate for them to consider hypothetical “what ifs.” But the thrust of the argument,
and the reason for the prosecutor’s rules, was that the jury’s essential role was to decide
what the facts were and those facts, not hypotheses or personal opinions, were
determinative of guilt or innocence. In this context, we conclude the argument does not
constitute deceptive or reprehensible conduct nor infect the trial with fundamental
unfairness. At its worse, it might have been slightly confusing; but it does not come close
to constituting prosecutorial error.
The prosecutor also argued that “[o]nly in the mind of a defense attorney will they
say, if you didn’t say it when you’re in the hospital right after you got shot, then you
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can’t ever change your story. You can’t ever add anything. Because if you do, that
means you’re lying. Only in the mind of a defense attorney would they say that.”
Without citation to any authority, defendant analogizes the prosecutor’s disparagement of
defense counsel to misstating the prosecution’s burden of proof. He contends that the
prosecutor was asking the jury to disregard a legitimate argument because it came from
an “ ‘illegitimate’ or ‘suspect’ source”—a defense attorney. Defendant is mistaken.
The prosecutor’s argument had absolutely nothing to do with the burden of proof
and no reasonable juror would draw such an inference. Advocates are given a wide
latitude in argument, and this latitude applies to the prosecution as well as to the defense.
During cross-examination the defense attorney insinuated that the eyewitness accounts
provided at the hospital were more reliable than the enhanced accounts they later
provided. Thus, the prosecutor was mocking the notion that any subsequent change in
their descriptions indicated they were lying by stating that “only in the mind of a defense
attorney” would subsequent elaboration constitute deception. Closing argument is not for
the fainthearted. We find nothing untoward in the prosecutor’s fiery argument and,
certainly, no misconduct so serious as to jeopardize defendant’s right to due process.
Finally, we return to the text message issue now in the guise of prosecutorial
misconduct. In this iteration, defendant contends the prosecutor improperly argued that
the text messages were true. Read in context, his argument was ambiguous. His
emphasis was the important fact that Brown had first testified to the existence and content
of the text messages before discovering they had been saved on his phone and the content
of the messages when introduced into evidence corroborated his earlier testimony.
“True” in that sense meant the text messages actually existed and they were consistent
with Brown’s testimony.
If, however, the argument is construed to mean the statements attributed to
defendant in the messages were true, then the argument allows for the improper use of
blatant hearsay. But, to his credit, defense counsel raised a timely and vehement
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objection to the argument and insisted the misconduct merited a new trial. The trial court
gave a curative limiting instruction and denied the motion for a new trial. The limiting
instruction clearly and decisively distinguished between the fact the existence of the text
messages was true and corroborated Brown’s testimony and admonished the jury they
were not to consider the truth of the hearsay evidence itself. In light of the following
curative instruction there was no prosecutorial misconduct:
“Folks, what we were discussing, the text messages that you heard, I allowed them
in mainly because when Jacarri Brown was on the witness stand and he was being cross-
examined by [defense counsel], who asked him about his contact or lack thereof with the
defendant and the defendant’s girlfriend, there was some discrepancy regarding whether
or not or the extent of which he had those contacts.
“And over lunch apparently he found these other texts and I allowed you to hear
that just in order then to show that what Jacarri Brown testified to when he was being
cross-examined by [defense counsel] was, in fact, true. All right. That he did have these
contacts. I did not allow that in for its truth; i.e., that the statements attributed to the
defendant in these texts were actually uttered by the defendant.
“That was only -- they were only allowed in for the purpose of supporting Jacarri’s
statement that he did have these exchanges with the defendant’s friend because he was
being asked about that by [defense counsel]. And then he had some evidence to
corroborate his answers that he did have these contacts and that’s why I allowed that in.
“But the statements that she attributes to the defendant at that time and that she
said, those are all hearsay, so those were admitted for a limited purpose, not for its truth.
I just want to make that clear.”
Defendant urges us to remand the case to the trial court because the court was
under the misapprehension that it had given a previous limiting instruction to the jury
when it had not. A remand is unnecessary. The instruction quoted above was given
immediately after the defense objected to the prosecutor’s argument and promptly and
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properly rectified any misunderstanding the argument may have generated. We conclude
the argument did not constitute misconduct, the jury was properly instructed, and the
defendant received a fair trial.
DISPOSITION
The gang enhancement and four life terms are stricken and the case is remanded
for resentencing on counts one through four. In all other respects, the judgment is
affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
HULL , J.
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